194363/2025/ awb JUDGMENT
2025- 11- 04
2
Resources (Pty) L td, was not a shareholder of Wakefield
Colliery at the time the meeting took place.
The case for the applicants is quite simple. It is that
because Sun International was entitled to be treated as if it
was a shareholder of Wakefield Colliery and because the
meeting of 15 September proceeded as if Sun International
was not a shareholder , the outcome of the meeting, the
meeting itself and the removal of Mr Kalla as a director of
Wakefield Colliery were all invalid.
Sun International’s rights to be treated as a 10
shareholder arise from a sale of shares agreement which
was entered into at least a year ago. For reasons I need
not enumerate, Sun International was not happy with the
way the agreement was being performed upon , and after
paying R10 million of the purchase price under the sale of
shares agreement, wrote a letter to the seller of the shares
on 20 November 2024. In paragraph 6 of that letter, Sun
International made the election to cancel the sale
agreement and seek immediate restitution.
Counsel for the applicants accepted that immediate
20
restitution would have been, from Sun International’s
perspective, the refund of what it had paid under the sale of
shares agreement, which at that stage was R10 million.
It was submitted that until that restitution has actually
taken place, the second applicant was entitled to be treated
194363/2025/ awb JUDGMENT
2025- 11- 04
3
as if it were a shareholder as provided for in clause 4 of the
sale of shares agreement.
I do not think that follows. Once the agreement was
cancelled in the letter of 20 November 2024, the parties'
rights were determined. Those rights were the rights they
had on the termination of the agreement, not the rights
enumerated in the agreement itself. The relevant part of
clause 4 of the agreement says that Sun International is
entitled to be treated as if it is the owner of the shares
notwithstanding that the full purchase price had not been
10
paid at the point of signature. It does not provide for Sun
International to be treated as the owner of the shares even
if the agreement is cancelled. In other words, at best for
Sun International, it was entitled on cancellation of the
agreement to be treated as if the agreement was never
struck.
The consequence was that Sun International was, as
at the date of cancellation, no longer entitled to be treated
as a shareholder of Wakefield , and was in theory entitled to
restitution of its payments. The claim for restitution was met
20
by the seller in this case with an allegation that they had
suffered damage as a consequence of the failure of the
agreement , which they were entitled to claim from the Sun
International. Whether or not that is true, on electing to
cancel the agreement, Sun International had no more than
194363/2025/ awb JUDGMENT
2025- 11- 04
4
the claim for restitution it said it would pursue in the letter
of 20 November 2024.
It follows that Sun International was not entitled to be
treated at the 15 September 2025 meeting as if it were a
shareholder of Wakefield Colliery , and that the outcome of
the meeting cannot be impugned on that basis.
It is not suggested that the meeting was invalid for
any other reason. It was conceded that Mr. Kalla, in his
capacity as a director of Wakefield Colliery , was given
notice of the meeting and what would be discussed there. 10
Such other criticisms as are advanced by the applicants in
their papers do not seem to me to rise to the level of
materiality necessary to invalidate 15 September 2025
meeting.
It follows from all this that there has been no case
made out on the papers on which the outcome of the
meeting can be impugned. Sun International’s rights are
those that flow from its decision to cancel the sale
agreement . They are not those that would have accrue d to
it had the contract still been in place. 20
That being the legal position, strictly speaking, this
matter should never have been brought to the urgent court,
since a claim for restitution under a sale agreement, even
one of R10 million , can seldom be urgent , and was plainly
not urgent in these circumstances .